Citation Nr: 1301640 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-07 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for esophageal cancer, claimed as due to Agent Orange exposure, for the purpose of accrued benefits. 2. Entitlement to service connection for lymphoma, claimed as due to Agent Orange exposure and/or as secondary to esophageal cancer, for the purpose of accrued benefits. 3. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and her daughter ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran, now deceased, had active duty service from March 1968 to January 1970. The Veteran died in January 2007. The appellant is the Veteran's surviving spouse, and is seeking entitlement to accrued benefits deriving from the Veteran's claims that were pending at the time of his death, as well as service connection for the cause of his death. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The matter was previously before the Board in September 2011, at which time it was remanded for additional development. It has returned to the Board for additional appellate consideration. The appellant and her daughter testified before the undersigned at a July 2010 Travel Board hearing. A transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War, and exposure to Agent Orange is presumed. 2. The Veteran died in January 2007; according to the death certificate, the cause of death was sepsis due to or as a consequence of head and neck cancer. 3. At the time of his death, the Veteran was not service connected for any disability, but claims seeking service connection for esophageal cancer and lymphoma were pending before VA. 4. The appellant timely filed her claim for accrued benefits in March 2007. 5. Esophageal cancer is not recognized by VA as causally related to exposure to herbicides in Vietnam. 6. The evidence of record associated with the claims file at the time of the Veteran's death does not link esophageal cancer to the Veteran's active duty service or to a service-connected disability. 7. The evidence of record does not demonstrate that the Veteran had a currently diagnosed lymphoma disability. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause the Veteran's death have not been met. 38 U.S.C.A. §§ 1310, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.310, 3.312 (2012). 2. The criteria for service connection for esophageal cancer, on an accrued basis, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2012). 3. The criteria for service connection for lymphoma, on an accrued basis, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, which includes a claim of service connection for the cause of the Veteran's death, VCAA notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-353 (2007), rev'd on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009) (unpublished). The RO sent March 2007 and May 2008 letters to the appellant. The March 2007 letter informed the appellant of the evidence needed to substantiate her claim for the cause of the Veteran's death, as well as her claims for accrued benefits. Although the notice provided in March 2007 did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claims, such error was harmless given that the claims are being denied, and hence, no effective date will be assigned with respect to the claimed conditions. In light of the Hupp decision, the letters are insufficient because the appellant was not informed of the disabilities for which service connection had been established during the Veteran's lifetime. She was also not provided an explanation of the evidence required to substantiate her claim based on a previously service connected condition or an explanation of the evidence and information required to substantiate her claim based on a condition not yet service connected. The Board finds that any defect was cured by actual knowledge on the part of the claimant of what was needed to substantiate the claim and that further development with regard to VA's duty to notify under VCAA would serve no useful purpose. Here, the appellant's argument for service connection for the cause of the Veteran's death centers on the assertion that the Veteran's fatal condition was caused by Agent Orange exposure. Her communications throughout the appeal, including testimony provided at the August 2010 Travel Board hearing, reflect actual knowledge of the requirements for service connection for the cause of the Veteran's death. Thus, the appellant is not prejudiced by any omission because she was aware of what was needed to establish service connection for the cause of death. Additionally, VA's duty to assist a DIC claimant includes obtaining a medical opinion whenever such an opinion is necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2002); Delarosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (noting that Section 5103A(a), and not (d), applies to DIC claims, and requires that VA need only obtain a medical opinion when such opinion is "necessary to substantiate the claimant's claim for a benefit"). VA must make reasonable efforts to provide a medical opinion unless there is no reasonable possibility that such assistance would aid in substantiating the claim. Wood v. Peake, 520 F.3d 1344, 1348 (Fed. Cir. 2008) (citation omitted). VA did not obtain a medical opinion with respect to the cause of death claim, but the Board finds that an opinion was not necessary as the competent evidence of record does not indicate or suggest a causal connection between the Veteran's service and his conditions or the cause of the Veteran's death. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records and private medical treatment records. No VA medical opinion was obtained, but as explained above, no medical opinion is necessary herein. Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, this appeal was remanded by the Board in September 2011. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the AMC contact the appellant and request a release that it could obtain private medical records and to attempt to verify the Veteran's alleged service in Vietnam. The AMC contacted the appellant and obtained the medical records in January 2012. Additionally, the Veteran's service personnel records were obtained. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). II. Pertinent Legal Criteria and Analysis A. Cause of Death The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). A principal cause of death is one which, singularly or jointly with some other condition, was the immediate or underlying cause of death, or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one which contributes substantially or materially to death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). Service-connected disabilities or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there was resulting debilitating effects and general impairment of health to the extent that would render the person less capable of resisting the effects of either disease or injury primarily causing death. 38 C.F.R. § 3.312(c)(3). There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of co-existing conditions, but, even in such cases, there is for consideration whether there may be reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. 38 C.F.R. § 3.312(c)(4). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F/ 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307(2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a malignant tumor may be granted if manifest within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Effective August 31, 2010, where a Veteran was exposed to an herbicide agent during active military, naval, or air service in the Republic of Vietnam, the following diseases shall be service connected, even though there is no record of such disease during service: chloracne, or any other acneform disease consistent with chloracne; type II diabetes (also known as Type II diabetes mellitus, or adult-onset diabetes); Hodgkin's disease; ischemic heart disease, including, but not limited to, acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (i.e., cancers of the lung, bronchus, larynx, or trachea); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); or soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). There is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 -46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010) In order to establish service connection by presumption, based on herbicide exposure, a disease listed above (see 38 C.F.R. § 3.309(e)) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. See 38 C.F.R. § 3.307(a)(6)(ii). Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The appellant asserts that service connection for the cause of the Veteran's death is warranted. She specifically contends that his January 2007 death from esophageal cancer (head and neck cancer) was due to his exposure to Agent Orange while he served in Vietnam. Although his service personnel records do not confirm that the Veteran served in the Republic of Vietnam, the claim that he served there is not rebutted. In this regard, although his service personnel records, including his DD Form 214, show that he received the Vietnam Service Medal, the Vietnam Campaign Medal, and the National Defense Service Medal, such medals are not indicative of his actual service on the landmass of Vietnam or inland waterways. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). Nevertheless, his DA Form 20 shows that he had foreign service between March 1969 and March 1970, during which time his principal duty was that of a gunner. The Board also notes that the Veteran received an Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam while assigned to Battery B, 21st Battalion (Airmobile), 77th Artillery in the Republic of Vietnam theater. In this context, a strike or flight includes those sorties which deliver ordnance against the enemy, land or evacuate personnel in assault or engage in search and rescue operations which encounter enemy opposition. The record also shows that the Veteran received the Vietnam Cross of Gallantry. The Republic of Vietnam awarded this medal to units for valorous combat achievements. See Manual of Military Decorations and Awards (Department of Defense Manual 1348.33-V3, November 2010). Therefore, the Board finds that the Veteran served in Vietnam and was thus exposed to Agent Orange. See 38 C.F.R. § 3.307(a)(6)(iii). However, esophageal cancer is not a condition enumerated among the diseases the Secretary has determined are related to herbicide (Agent Orange) exposure; rather it is expressly excluded. See 38 C.F.R. § 3.309(e). Consequently, the presumptive provisions of 38 U.S.C.A. § 1116 do not apply. Next, the Board finds that service connection for the cause of the Veteran's death is not warranted on a presumptive basis as a chronic disability. See generally 38 C.F.R. § 3.309(a). Although the Veteran's esophageal cancer is a malignant tumor, it did not manifest within a year of the Veteran's 1970 separation from service as it was not indicated prior to August 2006. See 38 C.F.R. § 3.307(a)(3). Thus, because the disease manifested decades after separation, presumptive service connection is not available. 38 C.F.R. §§ 3.307(a), 3.309(a). Considering the issue of whether esophageal cancer was directly related to service, the Board finds that it was not. Indeed, the Veteran's service treatment records are devoid of complaints or treatment of a gastrointestinal nature. They show also that he had a normal clinical evaluation of abdomen and viscera at his January 1970 separation examination and that he denied a history of stomach or intestinal trouble on a corresponding Report of Medical History. Additionally, his service treatment records reflect no complaints of, treatment for, or diagnosis of cancer of any kind; nor has the appellant so maintained. Moreover, the appellant does not argue that symptoms consistent with esophageal cancer were continuous from service and the record does not support that they were. The evidence is clear that the first medical documentation of record of an esophageal mass was in August 2006, more than 35 years after discharge. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor worthy of consideration. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Moreover, there is no clinical opinion of record associating the Veteran's fatal esophageal cancer to any incident of his service, to include Agent Orange exposure. The Board concludes that there is no basis to establish a link between the Veteran's metastatic esophageal cancer and service, to include any Agent Orange exposure therein. Accordingly, the preponderance of the evidence is against the claim; the benefit of the doubt provision does not apply and the appeal is denied. 38 C.F.R. § 3.312; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra. In this case, the only evidence that supports the appellant's claim for entitlement to service connection for the cause of the Veteran's death is her own statements. Although a lay person may be competent to report a diagnosis or etiology of a disability, the cause of death, which is typically determined by a medical physician, is not, in the Board's opinion, the type of disorder which is susceptible to a lay etiology; the origin of cancer is not a lay observable condition, such as ringing in the ears or varicose veins. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no evidence the appellant has medical training or is competent to report on the cause of the Veteran's death. Thus, the Board finds that her statements do not establish nexus or continuity. In conclusion, the Board finds that the competent evidence of record fails to establish that the cause of the Veteran's death was due to any incident of the Veteran's service. Although, the Board is sympathetic to the appellant on the loss of her husband, and grateful for his service, the preponderance of the evidence is against a favorable decision for her claim. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002) and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the appellant's claim for service connection for the cause of the Veteran's death is denied. 2. Accrued Benefits The appellant asserts that she is entitled to accrued benefits. Upon the death on a Veteran, his or her lawful surviving spouse may be paid periodic monetary benefits to which the Veteran was entitled at the time of his or her death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the Veteran died. Congress amended 38 U.S.C.A. § 5121 to repeal a two-year limit on accrued benefits so that a veteran's survivor may receive the full amount of award for accrued benefits. This change applies only to deaths occurring on or after the date of enactment, December 16, 2003, as is the case here. See Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003), codified at 38 U.S.C.A. § 5121(a). Accrued benefits include those that a veteran was entitled to at the time of death under an existing rating or the evidence physically or constructively of record at the time of that Veteran's death. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999); 38 C.F.R. § 3.1000(a). Thus, the appellant cannot furnish additional evidence that could be used to substantiate her claim, and VA could not develop additional evidence that would substantiate the claims of entitlement to accrued benefits. Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d) (4); see also Hayes v. Brown, 4 Vet. App. 353 (1993). The Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). In addition, an application for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000(c). The Veteran's claims for service connection for esophageal cancer and lymphoma were pending at the time of his death; the appellant's claim for accrued benefits were received by VA in March 2007, within one year of the Veteran's death. As the threshold criteria for consideration of the claim on an accrued basis have been met, the pending claim must now be adjudicated. A. Esophageal Cancer The Board finds that record does not relate the Veteran's esophageal cancer to his military service. To the extent that it is contended that the Veteran's esophageal cancer was due to Agent Orange exposure in service, as noted above, esophageal cancer is not a condition enumerated under 38 C.F.R. § 3.309(e). Therefore, presumptive service connection is not warranted. The Board finds that service connection is not warranted on a presumptive basis as a chronic disability. See generally 38 C.F.R. § 3.309(a). Indeed, as discussed above, the first clinical document of esophageal cancer of record is in August 2006, which was more than 35 years from the Veteran's 1970 separation from service. Thus, because the disease manifested decades after separation, presumptive service connection is not available. 3 8 C.F.R. §§ 3.307(a), 3.309(a). With regard to a grant of service connection on a direct-incurrence basis, as noted above, the Veteran's service treatment records are completely silent for complaints of, or treatment for, a gastrointestinal disability. Moreover, he denied a history of stomach or intestinal problems on a January 1970 Report of Medical History, and his abdomen and viscera were noted to be normal on clinical evaluation in January 1970. Moreover, the Veteran did not argue that symptoms consistent with esophageal cancer were continuous from service and the record does not support that they were. The evidence is clear that the first medical documentation of record of an esophageal mass was in August 2006, more than 35 years after discharge. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor worthy of consideration. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Moreover, there is no clinical opinion of record associating the Veteran's esophageal cancer to any incident of his service, to include Agent Orange exposure. The only evidence supportive of the claim consists of the Veteran's own belief, as evident in his November 2006 claim, that his cancer was in some manner related to service. Although a lay person may be competent to report a diagnosis or etiology of a disability, there is no evidence the Veteran had medical training or was competent to report on the etiology of his esophageal cancer, as such a condition is not a lay observable condition such as ringing in the ears, flat feet, or varicose veins. Thus, the Board finds that his statements do not establish the required evidence needed. In sum, there is no competent evidence of esophageal cancer in service or until years after service and no competent evidence linking esophageal cancer to service (including to exposure to herbicides). As the preponderance of the evidence therefore is against the claim, the claim of service connection for esophageal cancer on an accrued benefits basis is denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). B. Lymphoma The Veteran asserts that service connection is warranted for lymphoma. With respect to an in-service injury or disease, his service treatment records do not show that he ever complained of, or was treated for, a lymph condition. Moreover, with respect to a current disability, although an August 2006 VA discharge summary shows that the Veteran had a few malignant looking lymph nodes, there is no evidence that such symptomatology has ever been attributed by any medical clinician, VA or private, to any chronic disability, including lymphoma. In this regard, the Court has said that a symptom alone, like pain, is not a disability for VA compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The Board acknowledges the Veteran's assertions that he had a current lymphoma disability that was related to service. However, he was not competent to provide an opinion requiring medical knowledge, such as a question of medical diagnosis, in this case as lymphoma is not a lay observable condition such as tinnitus, flat feet, or varicose veins. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). He is competent to give evidence about what he experiences; for example, he is competent to report that he experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In this case, there are no diagnoses of record. Additionally, lay assertions in this regard are not competent. Consequently, the Board finds that the competent evidence of record fails to establish that the Veteran has a current lymphoma disability as a result of his service for which service connection may be established. Support for this conclusion is found in Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) where the Court found that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability and in the absence of proof of a present disability there can be no valid claim. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. As the preponderance of the evidence therefore is against the claim, the claim of service connection for lymphoma on an accrued benefits basis is denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for the cause of the Veteran's death is denied. Entitlement to service connection for esophageal cancer, for purposes of accrued benefits, is denied. Entitlement to service connection for lymphoma, for purposes of accrued benefits, is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs